The First-tier Tribunal can depart from a local housing authority’s civil penalty policy and vary the level of the penalty imposed based on further information provided during an appeal under paragraph 10 of schedule 13 to the Housing Act 2004.
In London Borough of Waltham Forest v Rahman [2023] UKUT 139 (LC), the respondent landlord was the owner of a ground-floor flat situated in London E17. The flat was located in an area subject to selective licensing under section 85. The appellant was the relevant local housing authority (the LHA) for the area.
The landlord failed to licence the property during the period March 2020 to October 2021. Pursuant to section 249A, the LHA issued the landlord with a civil penalty notice in the sum of £4,800 for the offence.
Based on the information the LHA held in relation to the landlord, it determined that he controlled fewer than five dwellings. In accordance with its civil penalty policy, an offence committed by such a landlord was regarded as a “moderate band 2 offence” that attracted a penalty of not more than £5,000.
The landlord appealed his penalty. The FTT found the offence had been proved. During the course of the hearing, the purported landlord also conceded that he owned more than five properties. On the basis of this admission, the LHA argued that the penalty should be increased in line with its civil penalty policy to £15,000, being the penalty for a landlord with a “significant property portfolio”. The FTT declined to do so because the landlord was not legally represented and had not had the opportunity of seeking legal advice in relation to his position.
The primary issue on appeal was whether the FTT had power to increase the penalty imposed based on the landlord’s admission. Relying on Waltham Forest LBC v Marshall [2020] UKUT 35 LC, the Upper Tribunal (Lands Chamber) found that it did. The starting point was the policy but if, after affording due weight to the same, the FTT disagreed with the LHA’s conclusions then it was entitled to vary the penalty indicated by the policy.
The UT refused to determine whether the FTT was entitled to decline to exercise its power in the present case as during the course of the appeal the true identity of the landlord was called into question. The decision was set aside and the matter remitted back to the FTT for a fresh determination on the level of the penalty to be imposed.
Elizabeth Dwomoh is a barrister at Lamb Chambers
